United States District Court, D. Maryland
ADOTE G. AKWEI
SYLVIA MATHEWS BURWELL, Secretary, Department of Health and Human Services.
DEBORAH K. CHASANOW, District Judge.
pending and ready for resolution in this employment
discrimination case is a motion to dismiss or, in the
alternative, for summary judgment filed by Defendant Sylvia
Mathews Burwell, Secretary of the United States Department of
Health and Human Services ("Defendant"). (ECF No.
19). The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary. Local Rule 105.6.
For the following reasons, Defendant's motion to dismiss
or, in the alternative, for summary judgment will be granted.
otherwise noted, the facts outlined here are undisputed and
construed in the light most favorable to Plaintiff Adote
Akwei ("Plaintiff"). Additional facts will be
discussed in the analysis section. Plaintiff, a black,
Christian male of African descent, worked in the Office of
Acquisitions ("OA") at the National Institutes of
Health ("NIH") as a government contractor employed
by Interior Systems Incorporated Professional Services
("ISI") from July 2006 until April 2011. (ECF Nos.
19-1, at 3; 25-2, at 1). Until June 2008, Plaintiff was
working as a "Clerk/Typist" and was one of several
contractors within the OA. In June 2008, the NIH restructured
the OA, converting all but one contractor position to federal
government employee positions. (ECF No. 19-6 ¶ 3). Plaintiff
was selected for the one remaining contractor position and
began working at the reception desk in the OA front office. (
Id. ¶ 4). After the reorganization, Plaintiff's
title was initially a "Junior Quality Assurance
Specialist, but it was changed to a
"Clerk/Typist/Program Analyst" in September 2010.
(ECF Nos. 19-12; 19-22). In this most recent role,
Plaintiff's expected job duties were to: organize and
complete all clerical typing duties as assigned; keep office
files and task orders updated and prepare reports as
required; take messages for personnel and assist management
with clerical and typing needs; act as time keeper; procure
and maintain office supplies; and "other duties as
required." (ECF No. 19-2, at 2).
first two years Plaintiff worked at the OA reception desk,
Melissa Richardson served as the OA Director. ( See
ECF No. 25-13, at 2-3). In an affidavit submitted as part of
the Equal Employment Opportunity Commission's (the
"EEOC") investigation into Plaintiff's
allegations, Ms. Richardson noted that she "had no
problems with [Plaintiff's] work because he was able to
perform the tasks [she] assigned to him, " which
included answering phones and greeting visitors, picking up
and distributing the mail, filing documents, gathering and
collating documents for Freedom of Information Act requests,
delivering packages to offices, gathering supply orders, and
"other related administrative support activities
necessary to assist the operation of OA." (ECF No.
25-13, at 4). Ms. Richardson, recognizing that
Plaintiff's new role included "evolving tasks"
of increased complexity, suggested to Plaintiff's
supervisor at ISI that Plaintiff enroll in various training
classes that would assist him in performing his new job
functions. ( Id. ).
Ms. Richardson was reassigned in January 2010, Pat Rice
became the Acting Director of the OA. ( See 19-4, at
1-2; 25-13, at 3). According to Mr. Rice, Plaintiff's job
description required significantly more than the receptionist
and administrative support duties Plaintiff was performing.
(ECF No. 19-4, at 3). Mr. Rice believed that Plaintiff
"did not demonstrate these skills nor did he complete
any tasks related to the majority of these requirements[, ]
requiring others to perform these tasks." ( Id.
). Accordingly, Mr. Rice suggested to Plaintiff and Robert
England, Plaintiff's supervisor at ISI, that Plaintiff
take training courses offered by the NIH or ISI. (
Id. at 5). Plaintiff asserts that he was denied
training that he requested in July 2010. (ECF No. 25-2, at
20). Despite several suggestions by Mr. Rice and Mr. England
that he take additional training, Plaintiff did not enroll in
any of the suggested substantive training
courses. Plaintiff contends that Mr. Rice made
multiple derogatory remarks about him and his performance.
Specifically, Mr. Rice asked Plaintiff to speak more loudly
and clearly on the phone, and Plaintiff alleges that Mr. Rice
noted that he could not understand Plaintiff due to his
accent. (ECF No. 19-3, at 3). Plaintiff also avers that he
overheard Mr. Rice tell another employee, "You know that
[Plaintiff] cannot amount to anything." ( Id.
at 9). Ericka Mack, one of Plaintiff's colleagues avers
that Mr. Rice told her that Plaintiff's employment was
terminated because Plaintiff "lacked a sufficient level
of skill and did not have the appearance to be the face of
the office, '" which Ms. Mack believed referred
"to the fact that [Plaintiff] wore jeans everyday rather
than business casual." (ECF No. 19-7, at 4).
to Mr. Rice, other employees complained about Plaintiff's
work because they were taking on tasks originally assigned to
Plaintiff. (ECF No. 19-4, at 3-4). Mr. Rice also believed
that Plaintiff was overusing the Internet for personal use;
furthermore, he was unsatisfied with Plaintiff's
communication skills, particularly in answering the main OA
phone line. ( Id. at 4). Plaintiff also often played
religious music at his desk, which Mr. Rice requested he not
do during business hours.
February 23, 2011, Mr. Rice requested a meeting with Mr.
England "to discuss the work performance of
[Plaintiff]." (ECF No. 19-16). According to Mr. England,
Mr. Rice "stated that even though [Plaintiff] is at the
front desk, his duties require more than him just answering
the phone and that he should be performing other duties as
well." ( Id. ). Mr. England met with Plaintiff
to convey Mr. Rice's concerns and to provide suggestions
for improvement. (ECF No. 19-17). On March 28, Mr. Rice and
other supervisors at the NIH requested another meeting with
Mr. England to discuss Plaintiff's continued poor
performance. (ECF No. 19-18). Mr. Rice "stated that
there had not been any substantial improvement" in
Plaintiff's work performance and he had not signed up for
any training classes. ( Id. ). Plaintiff's NIH
supervisors believed that "they were not getting the
work or the value from the position that is required to
support the office and the Director" and that "they
needed someone with greater skill sets with Microsoft Office
Suite and handling front desk duties." ( Id. ).
According to Mr. England, "NIH stated that they no
longer needed the services of [Plaintiff]." (
Id. ). Following this meeting, Mr. England removed
Plaintiff from the position at the NIH. (ECF No. 19-8, at 3).
Because ISI had no other open contractor positions, it
terminated Plaintiff's employment.
April 27, 2011, Plaintiff contacted an Equal Employment
Opportunity ("EEO") counselor at the United States
Department of Health and Human Services ("HHS"),
the department of which the NIH is a part. (ECF No. 19-23).
On July 4, Plaintiff filed a formal EEO complaint asserting
the following claims of discrimination based on race,
religion, and national origin: wrongful termination; denial
of training; hostile work environment due to Mr. Rice's
derogatory comments about Plaintiff's accent and lack of
competence; and discriminatory restriction on playing
religious music. (ECF No. 19-24). After conducting an
investigation and reviewing the record, the HHS EEO office
determined that Plaintiff "has not met his burden of
persuasion to show by a preponderance of the evidence that he
was discriminated against or subjected to harassment based on
his race, national origin[, or] religion." (ECF No.
19-25, at 16). Plaintiff appealed the decision to the EEOC,
which affirmed the HHS EEO determination and denied
Plaintiff's request for reconsideration on February 25,
2015. (ECF Nos. 19-26; 19-27).
April 16, Plaintiff, proceeding pro se, filed a
complaint in this court asserting discrimination and
harassment claims under Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e et
seq. (ECF No. 1). After multiple motions to extend time,
Defendant filed the pending motion to dismiss or, in the
alternative, for summary judgment. (ECF No. 19). Plaintiff
responded (ECF No. 25), and Defendant replied (ECF No. 28).
Standard of Review
has moved to dismiss or, in the alternative, for summary
judgment. Ordinarily, a court cannot consider matters outside
the pleadings or resolve factual disputes when ruling on a
Rule 12(b)(6) motion to dismiss. See Bosiger v.
U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). If the
court does consider matters outside the pleadings, "the
motion must be treated as one for summary judgment under Rule
56, " and "[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to
the motion." Fed.R.Civ.P. 12(d); see also
Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S.
Corp., 109 F.3d 993, 997 (4th Cir. 1997) ("[A] Rule
12(b)(6) motion to dismiss supported by extraneous materials
cannot be regarded as one for summary judgment until the
district court acts to convert the motion by indicating that
it will not exclude from its consideration of the motion the
supporting extraneous materials."). Here, both parties
submit extraneous materials, and Plaintiff had notice of a
potential conversion to summary judgment by virtue of the
motion filed by Defendant. See Warner v.
Quilo, No. ELH-12-248, 2012 WL 3065358, at *2 (D.Md.
July 26, 2012) ("When the movant expressly captions its
motion in the alternative' as one for summary judgment,
and submits matters outside the pleadings for the court's
consideration, the parties are deemed to be on notice that
conversion under Rule 12(d) may occur[.]") (quoting
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 261 (4th Cir. 1998)). Accordingly, Defendant's
motion will be treated as one for summary judgment.
judgment is appropriate under Fed.R.Civ.P. 56(a) when there
is no genuine dispute as to any material fact, and the moving
party is plainly entitled to judgment in its favor as a
matter of law. In Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986), the Supreme Court of the United
States explained that, when considering a motion for summary
judgment, the "judge's function is not himself to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial." A dispute about a material fact is genuine
"if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id.
at 248. Thus, "the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other
but whether a fairminded jury could return a verdict for the
[nonmoving party] on the evidence presented."
Id. at 252.
undertaking this inquiry, a court must view the facts and the
reasonable inferences drawn therefrom "in the light most
favorable to the party opposing the motion."
Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962));
see also EEOC v. Navy Fed. Credit Union,
424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a
"scintilla" of evidence in support of the nonmoving
party's case is not sufficient to preclude an order
granting summary judgment. See Liberty
Lobby, 477 U.S. at 252. A "party cannot create a
genuine dispute of material fact through mere speculation or
compilation of inferences." Shin v. Shalala,
166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed, this court has an affirmative obligation to prevent
factually unsupported claims and defenses from going to
trial. See Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys
Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
pro se litigants are to be given some latitude, the
above standards apply to everyone. Thus, as courts have
recognized repeatedly, even a pro se party may not
avoid summary judgment by relying on bald assertions and
speculative arguments. See Smith v.
Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing
threshold matter, Defendant contends that Plaintiff's
claims must be dismissed because Plaintiff was not an
employee of the NIH but was rather an employee of ISI. (ECF
No. 19-1, at 13-21; 28, at 2-7). Plaintiff does not
dispute that he was an employee of ISI, but asserts that he
also had an employer-employee relationship with the NIH. (ECF
No. 25-2, at 3). In effect, Plaintiff contends that the NIH
was a joint employer with ISI.
entity can be held liable in a Title VII action only if it is
an employer' of the complainant." Butler v.
Drive Automotive Indus. of Am., Inc., 793 F.3d 404, 408
(4th Cir. 2015). Even if an entity is not a plaintiff's
formal employer, it may be an "employer" under the
joint employer doctrine if it exercises "sufficient
control of the terms and conditions of [the plaintiff's]
employment." Id. (internal quotation marks
omitted) (citing Torres-Negron v. Merck & Co., 488
F.3d 34, 40 n.6 (1st Cir. 2007)). In Butler, the
United States Court of Appeals for the Fourth Circuit held
that the joint employer doctrine applies to actions brought
under Title VII, and "multiple entities may
simultaneously be considered employers." Id. at
409-10. The Fourth Circuit reasoned that the joint employment
doctrine "prevents those who effectively employ a worker
from evading liability by hiding behind another entity, such
as a staffing agency." Id. at 410.
determining whether an entity is an employer under the joint
employer doctrine, the Fourth Circuit has directed that